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For Five Supreme Court Justices,
Affirmative Action Isn't Academic

Judges or Their Kids
Are College 'Legacies'

By DANIEL GOLDENStaff Reporter of THE WALL STREET
JOURNAL

In one of the most controversial cases of the year, the nine U.S.
Supreme Court justices are expected soon to decide the fate of racial
preferences in college admissions. As it happens, a majority of the
justices are already familiar with another type of admissions
preference.

Five justices or their children qualified for an admissions edge known
as "legacy preference," which most U.S. colleges give to the sons and
daughters of their alumni. This preference is sometimes criticized as
affirmative action for wealthy whites, since the students who benefit from
it overwhelmingly fall into that category.

Two justices, Stephen Breyer and Anthony Kennedy, have family ties to
Stanford University that span three generations. A third justice, Sandra
Day O'Connor, is a Stanford graduate and the mother of two Stanford alumni,
and has served on the university's board of trustees. Justice John Paul
Stevens attended the University of Chicago and Northwestern Law School, as
did his father. Ruth Bader Ginsburg and her daughter Jane formed the first
mother-daughter combination ever to attend Harvard Law School.

It isn't clear whether academic lineage played a role in the admissions
of these justices' children, and several of them had stellar high-school
records. Yet judges -- like everyone else wrestling with the
affirmative-action debate -- inevitably filter it through the prism of
their own personal history. In this case, college ties exert "at a minimum,
a subconscious influence over how they think," says Edward Lazarus, a
former U.S. Supreme Court clerk and author of a 1998 book about the inner
workings of the court. Mr. Lazarus and other legal experts say the legacy
link wouldn't require the justices to recuse themselves.

Legacy preference isn't directly at issue in the case, a challenge to
affirmative action by white students who were rejected from the University
of Michigan. But during oral arguments on April 1, Justice Breyer drew a
parallel. "What is the difference," the justice asked a lawyer representing
the white students, between a university spurning a student because he
isn't a minority, or because he isn't the child of an alumnus? The lawyer
answered that the Equal Protection Clause of the U.S. Constitution
prohibits race discrimination, but not discrimination on the basis of
alumni affiliation.

In a brief filed before the court, minority students at Michigan and
elsewhere argue that legacy preference is one of several factors favoring
whites that must be counterbalanced by affirmative action. As the case was
en route to the Supreme Court, a federal appeals-court judge invoked a
similar argument. Lawyers for the white students argue that children of
minority alumni are also eligible for legacy preference. At the University
of Michigan, legacy preference confers a much smaller benefit than racial
preference. On the 150-point scale the university uses to rank candidates,
alumni children receive four points, compared with 20 points for black,
Hispanic and Native American students.

Justice Breyer's father, Irving, attended Stanford. So did his son,
Michael, who graduated in 1997. In his Stanford commencement address that
year, Justice Breyer spoke of walking the previous day through the
university's inner quadrangle and seeing "the three paving stones that mark
my family's three graduations: my father's graduation, my own in 1959, and
yours, Michael, now."

Before admitting Michael Breyer, Stanford placed him on its wait-list --
a frequent refuge for legacy applicants with borderline credentials. While
it's not certain why Mr. Breyer was on the waiting list, former Stanford
admissions dean Jean Fetter described the waiting list in a 1995 book as
"an appropriate place to acknowledge any legacy preference."

Susan Case, former director of college counseling at Milton Academy in
Milton, Mass., where Michael Breyer went to high school, confirmed that he
was wait-listed by Stanford. "I don't know that legacy was the reason he
was admitted," she says. "He was a strong candidate in his own right."
Another person familiar with his Milton credentials said the legacy
connection "obviously contributed." Michael Breyer declined to comment.

Justices Breyer, Stevens, Kennedy, O'Connor and Ginsburg said through a
court spokeswoman that it would be inappropriate to comment while the case
is pending. Stanford declined to comment, citing applicants' privacy
rights.

The Ivy League and other top colleges, which defend legacy preference as
essential to alumni fund raising, admit alumni children at two to four
times the rate of their overall applicant pools. Stanford admits one-fourth
of all legacies, compared with one-eighth of applicants overall. Colleges
say they rely on legacy preference as a tie-breaker between relatively
equal applicants, and that many alumni children are top-notch students who
would likely have been admitted regardless of preference.

Prestigious college connections on the high court aren't new. Among its
most famous Ivy League legacies are Harvard grad Oliver Wendell Holmes Jr.,
the son of a well-known essayist who attended the school, and former Chief
Justice William Howard Taft, one of a long line of his family members who
attended Yale. One notable justice who wasn't a legacy: Clarence Thomas,
the only black justice on the court. He grew up in poverty and graduated
from the College of the Holy Cross in Worcester, Mass., and Yale Law
School. His only child, Jamal, attended Virginia Military Institute.

Some of the current justices' legacy ties date back to an era before
widespread SAT testing and other standardized measures of academic merit.
More than half a century ago, Justice Stevens followed in the footsteps of
his father, Ernest Stevens, at both the University of Chicago and
Northwestern University Law School. None of the justice's children went to
Chicago, according to the university, but four of his nephews and nieces
have attended.

Richard Bischoff, the University of Chicago's associate director of
admissions, says the university doesn't have formal preference for
legacies. However, he says, applicants "who grow up with University of
Chicago alums usually articulate why they desire a liberal education better
than most high school seniors," and thus are more likely to be admitted.
Northwestern Law says it does favor legacies.

Justice Ginsburg and her husband Martin both attended Harvard Law
School. (The justice completed her degree at Columbia.) Their daughter,
Jane Ginsburg, says she had excellent undergraduate grades and was accepted
at three other top law schools besides Harvard. A Harvard Law spokesman
said the school gives a small edge to legacies but declined to comment on
individual students.

The younger Ms. Ginsburg -- now a professor at Columbia Law, where her
mother used to teach -- describes her attitude toward being a legacy this
way: "However you got in, you're in. Now you just have to prove you
belong."

Justice Kennedy -- son of Stanford alumna Gladys McLeod Kennedy -- went
to Stanford, as did his two sons and one daughter. Both sons, Justin and
Gregory, graduated from Jesuit High School in Carmichael, Calif. An
administrator there declined to comment. Justice Kennedy's daughter,
Kristin Marie, graduated in 1986 from St. Francis High School, a Catholic
girls' school in Sacramento, where she was an honor-roll student and played
on the tennis team, according to the school. Justin Kennedy declined to
comment; his brother and sister couldn't be reached.

Sandra Day O'Connor wrote in "Lazy B," her 2002 memoir about growing up
on a cattle ranch by that name, that her father "always regretted that he
did not attend Stanford." She fulfilled his dream, going there both as an
undergraduate and a law student -- as did her husband, John J. O'Connor
III. Two of their three sons, Scott and Jay, enrolled at Stanford; the
other, Brian, went to Colorado College. Jay, the youngest, was admitted to
Stanford in 1980, while his mother was on the university's board of
trustees.

Jay O'Connor, now a technology executive in the San Francisco area, says
he applied to Stanford and four Ivy League schools -- and was accepted by
all but Princeton, where he was wait-listed. In high school, he says, he
ranked near the top of his class and was editor-in-chief of the school
newspaper. He declined to divulge his SAT scores, but said they "met or
exceeded the standard ranges" published by the top-tier schools. "I was
seen by all of the schools to which I applied as an outstanding academic
candidate," he says. "I don't know what happened inside any of those
schools. I have no way of knowing that."

Mr. O'Connor adds: "I'm a big believer that you should make your own
mark. Who your parents are shouldn't be relevant." He says his brother,
Scott, was an outstanding student and state champion swimmer in high
school, and that Scott, too, was accepted at top universities with which
their parents weren't affiliated. Scott O'Connor declined to comment.

In 1982, Justice O'Connor, who is regarded as a swing vote in the
affirmative-action case, delivered the Stanford commencement address. At
the time, Jay was a sophomore, and Scott had already graduated. She
expressed the wish that "you will all be lucky enough to have your children
attend this paradise on earth ... that we call Stanford."